NTS TECHNICAL SYSTEMS
GENERAL TERMS AND CONDITIONS
FOR
ENGINEERING SERVICES AND RELATED GOODS
(“NTS General Terms and Conditions for Goods and Services”)

Rev. 6/1/14

1.     CONTRACT FORMATION:

(a) The “Seller” in this contract for the purchase and sale of goods and services, is NTS Technical Systems, a California corporation (dba National Technical Systems and NTS).  The “Buyer” is named on the Seller’s offer to sell (hereinafter, the “Quotation”).  Buyer and Seller are collectively herein the “Parties” or separately the “Party”.  Buyer’s acceptance of the Quotation as evidenced by: (1) a signed Purchase Order referencing the Seller’s Quotation number and these NTS  General Terms and Conditions for Goods and Services, (2) a return to Seller of a copy of the Quotation signed by Buyer or (3) payment, and the Seller’s acknowledgment of the acceptance (if given) together form the contract for the purchase and sale of the goods and/or services described in the Quotation, hereafter collectively forming an “Order”.  Notwithstanding the foregoing, the Buyer and Seller may have executed certain separate Non-disclosure Agreements that also form a part of the contract. Any ambiguity or inconsistency in these documents shall be resolved in the following order of precedence: (1) the Seller accepted Order, (2) the Quotation, (3) these NTS Technical Systems General Terms and Conditions for Goods and Services, (4) any separate Non-disclosure Agreement.  All other prior agreements are hereby made null and void.  The contract so formed is valid only if entirely in writing, and bilaterally executed by Authorized Representatives of Seller and Buyer.

(b) Additional or differing terms or conditions proposed by Buyer or included in Buyer’s Order or attachments thereto are hereby objected to by Seller and shall have no effect unless expressly accepted in writing by Seller.  No modification or waiver of these terms and conditions or the Order shall bind Seller or Buyer unless written, signed, and accepted by Authorized Representatives of both Seller and Buyer.  No provisions of the Uniform Commercial Code, any “gap filler” provisions of the Uniform Commercial Code, or the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Contract.  Seller will not commence services, deliver goods, or be bound by contract until the Order has been accepted by the Seller. 

(c) Seller Quotations are offered for acceptance within sixty (60) calendar days from the date printed on the face of the Quotation, unless a longer time period is specified in the Quotation.  The Quotation is withdrawn if not formally accepted, by one of the means indicated above, within the designated period.  No other form of acceptance is valid or will be recognized or accepted.  Seller’s acceptance of any Order is contingent upon Seller’s continuing approval of Buyer’s credit.   Seller shall commence work only after receipt of Buyer’s Purchase Order, including this Contract in its entirety, and delivery of an Acknowledgement Copy of Purchase Order to Buyer.   Seller is under no obligation to enter an Order acknowledgement and may rescind the Quotation at any time prior to Buyer’s unqualified acceptance.

2.     DEFNITIONS: The following terms shall have the meanings set forth below:

(a)            “Buyer’s Procurement Representative” shall mean a person authorized by Buyer to issue Purchase Orders.

(b)            “Buyer” shall mean the natural person or legal entity identified in the Seller’s Proposal, Quotation or Statement of Work as the entity purchasing the goods and services.

(c)            “Customer” shall mean a customer of the Buyer.

(d)           “Delivery Date” shall mean the calendar date the Work has passed final inspection and /or acceptance test.

(e)            “Delivery” shall mean delivery to Buyer’s specified location of conforming work (or non-conforming work which conforms under Buyer issued waivers), which has passed final inspection and/or acceptance test.  Passage of final inspection or acceptance test is determined solely by Buyer.  Delivery is not complete, until Work is accepted by Buyer, in writing, the acceptance period has expired, or is evidenced by payment by Buyer.

(f)             “Due Date” shall mean the date Delivery is requested by Buyer, as set forth in a Purchase Order. Due Date is expressed in calendar days after receipt of Order.

(g)           “Party” shall mean the Buyer or the Seller as appropriate.  “Parties” shall mean the Buyer and Seller collectively.

(h)           “Proposal” or “Quotation” shall meanthe Seller’s offer to sell, setting forth, by line item, a description of the Work (or part number), the price for the Work, the anticipated delivery schedule of the Work, the quality requirements of the Work, the final inspection and/or acceptance test criteria of the Work and any Warranties of the Work. Proposals may also include the proposed “methods” of the work.

(i)             “Purchase Order” or “PO” shall mean a writing issued by Buyer as an order for the purchase of the Work, or a change to the Work, authorized by the Buyer in writing, (hereinafter, a “Change Order”).  All Purchase Orders shall reference this contract, and the individual part number or line items, and shall specify a Purchase Order Number, an item price, promised Due Date, delivery location, delivery contact and telephone number and bill-to address.

(j)             “Receipt of Order Date” shall be the later of the date shown as the Order Date on the Purchase Order or the date the order is transmitted to the Seller as evidenced by a FAX or e-mail read receipt.

(k)            “Seller” shall mean NTS Technical Systems, a California corporation, with principal offices located at 24007 Ventura Blvd., Suite 200, Calabasas, CA 91302 providing the goods and services for sale to the Buyer.

(l)             “Statement of Work” shall mean a writing, negotiated between the Seller and the Buyer, and incorporated fully herein, setting forth, by line item, a description of the Work (or part number), the price for the Work, the anticipated delivery schedule of the Work, the quality requirements of the Work, the final inspection and/or acceptance test criteria of the Work and any Warranties of the Work.

(m)           “Work” shall mean the goods and services provided under this contract.

3.     SELLER’S OBLIGATIONS: The Seller agrees to perform the Work in compliance with the specifications and procedures in the Statement of Work, Buyer’s Purchase Order and this contract in a workman-like and professional manner. Seller shall strive to perform the Work in a manner which minimizes any negative impact on the Buyer’s on-going business operations.  Seller shall not be responsible for errors or omissions due to Buyer’s supplied or approved procedures, specifications, materials or other Buyer supplied information.

4.     QUALITY CONTROL:

(a)            Seller shall provide and maintain a quality control system to an industry recognized Quality Standard and in compliance with any other specific quality requirements identified on the face of the Purchase Order or incorporated by reference on the Purchase Order.

(b)            Records of all quality control inspection work by Seller shall be kept complete and available to Buyer and its Customers.

5.     COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS:

(a)            Seller agrees to comply with all applicable laws, orders, rules, regulations and ordinances in force and as amended from time to time.

(b)            Seller represents that each chemical substance constituting or contained in the Work sold or otherwise transferred to Buyer is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Agency pursuant to the Toxic Substances Control Act (15 U.S.C. Sec 2601 et seq.) as amended from time to time.

(c)            Seller shall provide to Buyer, with each delivery, any Material Safety Data Sheet applicable to the Work in conformance with,  and containing such information as required by the Occupational Safety and Health Act of 1970 and regulations promulgated thereunder, or its State approved counterpart.

(d)           The Seller certifies that to the best of its knowledge and belief, the Seller and any of its Principals (as defined in FAR 52.209-5) are not presently debarred, suspended, proposed for debarment or declared ineligible for the award of contracts by any U.S. Federal Government Agency.  Seller shall provide immediate written notice to Buyer if at any time it learns that its certification was erroneous or has become erroneous by reason of change of circumstances.

(e)            Seller agrees to comply with all applicable export and import control laws and regulations of Seller and Buyer’s country as amended from time to time, including the Arms Control Export Act, the Export Administration Act, the International Traffic in Arms Regulations (ITAR), and the Export Administration Regulations.  

(f)             No gratuities (in the form of entertainment, gifts or otherwise) or kickbacks shall be offered or given by Seller, to any employee of Buyer with a view toward securing favorable treatment as a Seller.  Seller shall also comply with the Foreign Corrupt Practices Act.

6.     INDEPENDENT CONTRACTORS: Seller is an independent contractor in all its operations and activities hereunder.  The employees of Seller performing the Work under this contract shall be Seller’s employees or sub-contractors exclusively and shall have no relationship to Buyer.  Nothing in this contract and no action taken by the Parties pursuant to this contract shall constitute or be deemed to constitute a partnership between the Parties, or shall be deemed to make either party the agent,  employee or representative of the other.

7.     ASSIGNMENT AND SUBCONTRACTING: Any purported assignment or subcontracting of Seller’s contractual rights or obligations, or a delegation of Seller’s duties shall be void, unless prior written consent is given by Buyer, such consent not  to be unreasonably withheld .  Seller shall provide proof of payment of all subcontractors and the release of any and all liens against the Work or Buyer.  However, Seller may assign rights to amounts to be paid, amounts due, or amounts to become due, to a financing institution, if Buyer is promptly furnished a signed copy of such assignment reasonably in advance of the due date for payment of any such amounts.  Amounts assigned to an assignee shall be subject to offsets or recoupment for any present or future claims of Buyer against Seller.   Assignees shall be duly informed of these provisions, in writing, by Seller.

8.     CONTRACT DIRECTION:

(a)            Only the Buyer’s Procurement Representative has the authority to change this contract.  Such changes must be in writing and bilaterally executed by Buyer and Seller.

(b)            Buyer’s engineering and technical personnel may from time to time render assistance, or give technical advice, or effect an exchange of information with Seller’s personnel concerning the Work.  Such actions shall not be deemed to be a change under Article 9 CHANGES, and shall not be the basis for an equitable adjustment.

(c)            Except as otherwise provided herein, all notices furnished by Seller shall be sent to the person designated by Buyer to receive notices in accordance with Article 22 NOTICES of this contract.

9.     CHANGES:

(a)            The Buyer’s Procurement Representative may at any time, by written notice, and without notice to  sureties or assignees, make “Changes” within the general scope of this contract in any one or more of the following: (i) drawings, designs or specifications; (ii) method of shipping or packing; (iii) place of inspection, acceptance, performance, or point of delivery; (iv) delivery schedule; (v) description of services to be performed; and (vi) time of performance of the Work (e.g., hours of the day, days of the week, etc.).  Changes may only be made in writing, and must be embodied in a written Change Order by the Buyer’s Authorized Procurement Representative.

(b)            If any such change causes an increase or decrease in the cost of, or the time required for performance of any part of this contract, Buyer shall make an equitable adjustment in the price and/or delivery schedule, and modify the Purchase Order accordingly, through a Change Order.

(c)            Any claim for an equitable adjustment by Seller must be submitted in writing to Buyer within thirty (30) days from the date of notice of the change, unless the Parties agree in writing to a longer period.  Buyer may audit, or request an independent audit, of any of Seller’s non-proprietary books or records related directly or indirectly to this contract in connection with any equitable adjustment proposal.  Seller shall provide Buyer with access to such premises, documents, personnel and facilities as may reasonably be necessary to allow Buyer, or its representatives, to carry out such audit(s).

(d)           Failure to reach agreement to any adjustment shall be resolved in accordance with Article 16 DISPUTES, of this Contract.  However, nothing contained in this Article 9 CHANGES shall excuse the Seller from proceeding without delay in the performance of the unchanged portion of this Contract.  In accordance with Seller’s Quality Management System and FAR 52.243-1 Alt III, Seller cannot proceed with disputed Work or Work not authorized in writing.

10.   STOP WORK ORDER:

(a)            Seller shall stop Work for up to ninety (90) days in accordance with the terms of any written notice from Buyer, or for longer periods of time as the Parties may agree and shall take all reasonable steps to minimize the incurrence of costs allocable to the Work covered by this contract during the period of Work stoppage.

(b)            Within such period, Buyer shall either terminate or continue the Work by written notice to Seller.  In the event of a continuation, an equitable adjustment in accordance with the principles of Article 9 CHANGES, hereof, shall be made to the price, delivery schedule or other provision affected by the Work stoppage, if applicable, provided that the claim for equitable adjustment is made within thirty (30) days after such continuation.

11.   TERMINATION:

(a)            Buyer may terminate all or part of this contract for its convenience by giving written notice to Seller.  In the event of a partial or complete termination, Buyer’s obligation shall be to promptly pay Seller: (i) The price of any materials purchased by Seller (including any transport charges to be incurred) which cannot be returned for restocking (Ownership of said materials shall transfer to Buyer upon payment.); (ii) Any restocking charges (including any transport charges) for materials purchased by Seller which can be returned for restocking; (iii) Any price of already incurred labor and in-process materials which are cancelled (Ownership of any partially completed work shall transfer to Buyer upon payment.); (iv) Any reasonable charges that Seller can demonstrate to the satisfaction of Buyer, using Generally Accepted Accounting Principles, have resulted from the termination, but not including lost profits or unabsorbed overhead costs. Seller shall not be paid for any Work performed or costs incurred which reasonably could have been avoided. Buyer may audit, or request an independent audit, of any of Seller’s non-proprietary books or records related directly or indirectly to this contract in connection with any termination.  Seller shall provide Buyer with access to such premises, documents, personnel and facilities as may reasonably be necessary to allow Buyer, or its representatives, to carry out such audits.

(b)            In no event shall Buyer be liable for lost or anticipated profits, unabsorbed indirect costs, or non-economic losses, or for any amount in excess of the total Purchase Order amount.  Seller’s termination claim shall be submitted within ninety (90) days from the effective date of the termination.

(c)            Seller shall continue all Work not terminated.

12.   PACKING, PACKAGING, SHIPMENT AND TITLE:

(a)            Unless otherwise specified, all Work shall be packed and packaged in accordance with good commercial practice.

(b)            A complete packing list shall be enclosed with all shipments.  Seller shall mark all containers or packages with necessary lifting, loading and shipping information, including the Buyer’s Purchase Order Number, Item Number, dates of shipment and the names and addresses of consignor and consignee.  Bills of lading shall include the Purchase Order Number.

13.   INSPECTION,  ACCEPTANCE AND TRANSFER OF TITLE AND CONTROL:

(a)            Notwithstanding: (i) payment; (ii) passage of title; (iii) prior inspection or test; (iv) execution of acceptance documents, Buyer and its Customer may inspect all Work prior to acceptance at reasonable times and places, including, when practicable, during manufacturing and before shipment.  Seller shall provide all information, facilities and assistance necessary for safe and convenient inspection, or demonstration of fulfillment of the final inspection or acceptance test criteria without additional charge.

(b)            No such inspection shall relieve Seller of its obligations to furnish all Work in accordance with the requirements of this contract.  Buyer’s final inspection and/or acceptance test shall be at the delivery location specified by Buyer unless otherwise designated by Buyer.  Acceptance is not final/complete until the Work is accepted by the Buyer in writing, or thirty (30) days has elapsed from the date of transfer of the Work to the Buyer’s control (the “Acceptance Period”).  Custody, control, stewardship and care of the Work shall pass to Buyer upon transfer of the Work by Seller to the common carrier for delivery to Buyer’s specified delivery location.  Title shall pass to Buyer upon completion of Delivery and final payment.

(c)            Seller shall provide and maintain a test and inspection system acceptable to Buyer and its Clients, including independent third party testing, if required by Buyer.

(d)           If Seller delivers non-conforming Work, the Parties shall agree to remedy the non-conforming Work by: (i) accepting all or part of the non-conforming Work (through written waivers); (ii) rejecting such Work with Seller re-performing the Work.

(e)            Seller shall not re-tender rejected Work without disclosing the corrective action taken.

14.   DEFAULT:

(a)            Buyer, by written notice, which indicates details of default, may terminate this contract for default, in whole or in part, if Seller fails to comply with any of the terms of this contract, fails to make progress as to endanger performance of this Contract, or fails to provide adequate assurance of future performance.  Seller shall have ten (10) days (or such longer period as Buyer may authorize in writing) after receipt of notice from Buyer to initiate the cure of any such failure.  Default involving delivery schedule delays shall not be subject to this cure provision, but shall be subject to cancellation for default.  Only Force Majeure and Buyer induced events shall constitute excusable delays.   In the event of an uncured default, Buyer shall pay all termination charges, as listed in Article 11(a).

(b)            Buyer shall not be liable for any Work not accepted.  However, Buyer may require Seller to deliver to Buyer any supplies and materials, manufacturing materials, and manufacturing drawings that Seller has specifically produced or acquired for the terminated portion of this Contract.  Buyer and Seller shall agree on the amount of payments for these other deliverables as defined in Article 10 CHANGES hereof.

(c)            Seller shall continue all Work not terminated.

(d)           If a termination in accordance with Article 14(a) hereof is later determined not be caused by a default of Seller, the termination shall be deemed to be a Termination for Convenience.

15.   PAYMENTS, DUTIES, TARIFFS, SHIPPING COSTS AND TAXES:

(a)            Prices quoted by Seller are “Market Prices” (defined in the Federal Acquisition Regulations (FAR) §2.101(a) ”Commercial Items” (6)ii ), and are: (i) for goods or services offered to the general public and sold in substantial quantities in the commercial marketplace; (ii) valid only for the purpose of the Quotation. All pricing details are budgetary in nature, and may not be utilized as a basis for pricing similar, repeat, or subsequent orders. Unless otherwise specified in the Purchase Order, prices do not include applicable federal, state and local taxes, duties, tariffs and similar fees imposed by any governmental authority.   Buyer agrees that all taxes, interest and penalties thereon, if any, relating to the services performed or the goods produced or sold hereunder, excluding taxes based upon the Seller’s income and ad valorem property taxes of Seller, are to be paid when due by the Buyer.

(b)            Buyer is responsible for all freight charges, freight insurance, duties, customs brokerage fees, transit taxes and export/import filings for transfer of freight inbound or outbound, unless specific exemptions to this requirement are specified in the Quotation, or specified here:  Freight outbound from Seller to Buyer shall be INCOTERMS 2010, EXW- Location named by Seller. Freight inbound from Buyer to Seller shall be INCOTERMS 2010 DDP-Location named by Seller (FOB Seller’s Dock, duty paid) at Buyer’s additional expense.

(c)            Terms of Payment are net thirty (30) calendar days following Buyer’s receipt of Seller’s proper invoice in accordance with any payment milestones, line items or schedule in Buyer’s Purchase Order, except for any final invoice which shall be paid upon Delivery (as defined in Article 2(e) hereof), or any milestone or line item designated for payment in an alternate manner within the Purchase Order.  Buyer shall have the right of offset against payments due or at issue under this contract or any other agreement or contract between the Parties.

(d)           Payment shall have been deemed to be made as of the date of mailing of Buyer’s payment or electronic funds transfer. A late payment penalty of the lesser of one percent (1%) per month of the amount due, or the maximum amount allowed by law, shall accrue for all late payments.

(e)            Invoices must clearly show Seller’s shipper or packing list number and Buyer’s Purchase Order number.  Packing lists must state clearly the Purchase Order Number, Line Item Number, applicable serial, part, drawing, release or advice numbers, descriptions, quantities and weights.

16.   DISPUTES:

(a)            Buyer’s Purchase Order shall have the highest precedence in all matters, including disputes, followed by, in descending order of precedence, (i) These NTS General Terms and Conditions for Goods and Services, (ii) The Statement of Work, (iii) Buyer approved designs, drawings or specifications.  All disputes under this contract (including any question regarding its existence, validity and termination) which are not disposed of by mutual agreement following good faith negotiations within a period of thirty (30) days from the notification of a dispute shall be finally resolved at Seller’s sole discretion either by submitting the claim to (i) a court of competent jurisdiction in the State of California, County of Los Angeles or (ii) binding arbitration,  before a mutually acceptable arbitrator in the State of California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The Buyer agrees to submit to the exclusive jurisdiction of the court or arbitrator (as the case may be), and nothing herein shall affect the Seller’s right to apply to an appropriate court for interim relief or to prevent irreparable harm to Seller. In accordance with Seller’s Quality Management System and FAR 52.243-1 Alt III, Seller cannot proceed with disputed work.

(b)            In any dispute not resolved by good faith negotiations and ultimately resolved by arbitration or litigation, the prevailing party shall be entitled to all reasonable attorney’s fees and costs, and the non-prevailing party shall pay all costs and fees of arbitration, if any.

(c)            Buyer acknowledges that it has read this Contract, and has had the opportunity to clarify these Terms and Conditions with Seller, and is satisfied that it reflects the intent of the Parties.  Accordingly, the rule of contra proferentemshall not apply to this Contract, and Buyer agrees and acknowledges that any ambiguity, inconsistency or conflict that remains in the Contract after its execution by both Parties shall not be construed for or against either Party.

17.   PROPERTY:

(a)            Buyer may provide to Seller property owned by either Buyer or its Customer (Furnished Property).  Furnished Property shall be used only for the performance of this Contract.

(b)            Title to Furnished Property shall remain in Buyer or its Customer.  Seller shall clearly mark (if not so marked) all Furnished Property to show its ownership.

(c)            Except for reasonable wear and tear, Seller shall be responsible for, and shall promptly notify Buyer of, any loss, damage, destruction, or theft of Furnished Property.  Without additional charge, Seller shall manage, and preserve Furnished Property in accordance with good commercial practice.

(d)           Where Work is manufactured from material supplied by Buyer, unless agreed otherwise, replacements for any spoiled or lost material shall be ordered from Buyer at Seller’s liability and expense, and any value added by Buyer to such material shall also be at Seller’s liability and expense.

18.   PROPRIETARY DATA, RIGHTS IN DATA AND RELEASE OF INFORMATION:

(a)            The respective proprietary know-how of Seller and Buyer, as well as all other confidential commercial and operational information of Seller and Buyer, including the contents of contracts, (hereinafter called “Information”) shall be treated as confidential information by both Parties. Both Parties shall take all necessary measures to protect the Information from unauthorized access, unauthorized release, copying, transmission or unauthorized use of the Information of the other Party using the same care as they would for their own confidential information, but not less than a reasonable degree of care. Information that is already publicly available prior to or following its transmission to either Party shall not be subject to these provisions.  The Buyer and Seller may execute separate Non-disclosure or Proprietary Information Agreements which shall supersede these Article 18(a) and 18(b), and shall form a part of the Contract.

(b)            Both Parties shall use reasonable care to ensure that employees and third parties receiving access to the Information are subject to the same requirements of confidentiality as identified above. Both Parties shall, at the request of the other Party, ensure that employees and third parties sign a separate confidentiality agreement, at least as restrictive as the confidentiality agreement between the Parties, before being permitted access to the Information.

(c)            Buyer and Seller shall, without delay, notify the other Party in the event that either Party receives any court, government or other official and binding demand for the release of Information, where such notification is not prohibited.

(d)           Seller’s “background intellectual property” consisting of any design, invention, apparatus or product, including any software or firmware, previously developed by the Seller and incorporated into the Work, shall at all times remain the sole and exclusive property of the Seller.  Any invention, design or other intellectual property first made, conceived or recorded by Seller in the performance of this contract, including the Engineering Design Services and the resultant design designated in the Statement of Work, shall be considered the sole and exclusive property of the Seller, even if it incorporates information provided by the Buyer, unless produced as a deliverable “work made for hire”, and identified as a deliverable in the Seller’s Quotation, in which case all rights, excepting manufacturing rights, shall accrue to Buyer. Seller and Buyer shall execute all documents necessary to perfect title thereto. The Seller grants to the Buyer the following licenses, upon due payment of all amounts due under this contract:

i. Seller grants Buyer, an exclusive, fully paid, royalty free, worldwide license to use or display the Work.  Seller may separately and expressly grant to Buyer an exclusive, fully paid, royalty free, worldwide license to distribute, lease, sell, offer for sale, import, export or otherwise transfer all of the Work, including any background intellectual property incorporated into the Work.  Seller does not grant Buyer any license to manufacture, cause to be manufactured, or contract to be manufactured any of the apparatus/product/system of the Work, or any direct derivative apparatus/product/system of the Work. Seller may separately and expressly grant manufacturing rights.

ii. Seller grants Buyer a non-exclusive royalty free, world-wide license to practice any method covered by any Patent Rights. The term “Patent Rights” refers to any patent issuing on U.S. Patent application and any divisionals, continuations, continuation-in-part, and reissues thereof.

iii. The licenses granted above may be assigned by the Buyer to a successor in interest to all or substantially all of Buyer’s business. In addition, the licenses granted above shall apply to any of Buyer’s Affiliates, customers, agents, and representatives. Contractors that Buyer determines need to have rights under the license granted hereunder can obtain their own license.

iv. The licenses granted in this Section are irrevocable, except if the Buyer breaches any term of this contract.

(e)            This Article 18 of this Contract shall continue in effect for a period of three (3) years after the termination or expiration of this Contract, excluding Subsection (d) hereof, which shall continue in perpetuity.

19.   INSURANCE / INDEMNIFICATION AND LIMITATION OF LIABILITY:

(a)            IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR  OTHERWISE FOR  ANY  SPECIAL, INDIRECT, PUNITIVE OR  CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF TEMPORARY EQUIPMENT, OVERTIME, BUSINESS INTERRUPTION, SPOILAGE OF GOODS, CLAIMS OF CUSTOMERS OR OTHER ECONOMIC HARM, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EACH PARTY SHALL BEAR ALL LIABILITY AND RESPONSIBILITY FOR THE ACTS, ERRORS OR OMISSIONS OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, ASSIGNS, SUCCESSORS, REPRESENTATIVES OR AGENTS COMMITTED WITHIN THE SCOPE OF THEIR EMPLOYMENT OR FIDUCIARY DUTY. EACH PARTY SHALL MAINTAIN INSURANCE  IN REASONABLE AND RESPONSIBLE AMOUNTS FOR SUCH LIABILITIES,  NEITHER PARTY SHALL BE LIABLE FOR THE ACTS, ERRORS OR OMISSIONS OF THE OTHER PARTY’S OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, ASSIGNS, SUCCESSORS, REPRESENTATIVES OR AGENTS  WHETHER OR NOT CARRIED OUT WITHIN THE SCOPE OF THEIR EMPLOYMENT OR FIDUCIARY DUTY. Nothing in this Agreement shall exclude or limit either Party’s liability for death or personal injury caused by said Party’s negligence or for fraudulent misrepresentation or for any liability that cannot legally be excluded or limited.  Seller is neither an insurer nor a guarantor and disclaims all liability in such capacity.  Buyer is not a co-insured under Seller’s insurance, unless specifically so stated in the accepted Order.

(b)            Buyer’s failure to purchase from Seller and comply with instructions for installation, operation and maintenance of the Work provided under this contract shall constitute a full and complete waiver of all Seller’s liability of every form and type.

(c)            The Seller shall not be liable for any damages arising from delay in the performance of the Work if such delay is due to a cause beyond the reasonable control of the Seller.  In the event such a delay arises, Seller shall immediately notify Buyer and provide a reasonable estimate of the date of completion of the Work. Any event beyond Seller’s reasonable control shall not constitute a cause for cancellation of the Purchase Order, but shall extend the Seller’s time to perform the Work on a business-day for business-day basis for a period not to exceed the duration of the delay, but in no event longer than thirty (30) days.  In the event the delay exceeds thirty (30) days, Buyer may, at its sole discretion: (i) negotiate a new date for completion of the Work, or (ii) terminate this contract pursuant to Article 11 TERMINATION.

(d)           Buyer, its officers, employees, agents, Sellers, subcontractors, Customers and invitees, shall comply with all Seller site safety and security requirements.  Buyer shall indemnify and hold harmless Seller, its officers, employees and agents from any losses, costs, claims, causes of action, damages, liabilities and expenses, including attorneys’ fees, all expenses of litigation and/or settlement and court costs by reason of property damage or loss or personal injury or death to any person caused in whole or in part by the actions or omissions of Buyer, its officers, employees, agents, Sellers, subcontractors, Customers and invitees. For claims under Workers’ Compensation Insurance related to this contract, each party hereby waives subrogation in favor of the other party.

(e)            Where the Buyer or Buyer’s Customer is a “Nuclear Licensee”, and the Work is for use in a “nuclear facility”, and where those terms have the meaning ascribed to them  in the Atomic Energy Act and the Nuclear Regulatory Commission’s implementing regulations, the Seller’s Nuclear Liability Terms and Conditions Supplement shall apply to this contract and are incorporated herein by reference.

(f)             In the event that Seller, its employees, agents or subcontractors enter the site of Buyer or its Customers for any reason in connection with this contract, then Seller and its subcontractors shall procure and maintain workers’ compensation, comprehensive general liability, bodily injury and property damage insurance in amounts as specified herein, or in amounts as Buyer may require and separately specify in the Purchase Order. Buyer’s employees are not subject to the Service Contract Act or the Davis-Bacon Act.   Seller shall provide Buyer with Certificates of Insurance evidencing Seller’s insurance coverage and naming Buyer as an additional insured, in a form acceptable to Buyer, prior to commencing performance of this contract. Seller shall provide Buyer thirty (30) days written notice of the cancellation or change in the term or coverage of any of Seller’s required insurance. 

                                          i.    Commercial General Liability and Commercial Catastrophe or “Umbrella” Excess Liability Insurance:  If Seller or any subcontractor thereof will be performing Work on Buyer's premises, Seller shall carry and maintain, and ensure that all subcontractors thereof carry and maintain, throughout the period when work is performed and until final acceptance by Buyer, Commercial General Liability and Excess Liability Insurance with available limits of not less than one million dollars ($l,000,000) per occurrence and two million dollars ($2,000,000) in aggregate for bodily injury and property damage combined.  Such insurance shall contain coverage for all premises and operations, broad form property damage, broad form contractual liability and goods and completed-operations insurance with limits of not less than one million dollars ($1,000,000) per occurrence for a minimum of 24 months after final acceptance of the work by Buyer.

                                          ii.    Automobile Liability:  If Seller or any subcontractor thereof will be performing Work on Buyer's premises, and if licensed vehicles will be used in connection with the performance of the Work, Seller shall carry and maintain, and ensure that any subcontractor thereof who uses a licensed vehicle in connection with the performance of the Work carries and maintains, throughout the period when Work is performed and until final acceptance by Buyer, Business Automobile Liability insurance covering all vehicles, whether owned, hired, rented, borrowed, leased or otherwise, with available limits of not less than one million dollars ($1,000,000) per occurrence for bodily injury and property damage.  “Scheduled autos” insurance is not acceptable. 

                                        iii.    Workers’ Compensation:  If Seller or any subcontractor thereof will be performing Work on Buyer's premises, throughout the period when work is performed and until final acceptance by Buyer, Seller shall, and ensure that any subcontractor thereof shall, cover or maintain insurance in accordance with the applicable laws relating to Workers’ Compensation with respect to all of their respective employees working on or about Buyer's premises. Coverage shall be a minimum of one million dollars ($1,000,000) for each accident, and one million dollars ($1,000,000) for disease.   If Seller is required by any applicable law to pay any Workers’ Compensation premiums with respect to an employee of Buyer or any subcontractor thereof, Buyer shall reimburse Seller for such payment.

                                        iv.    Seller agrees to a Waiver of Subrogation for all insurances identified herein. Buyer shall be exempt from and in no way liable for any amount of money which may represent a deductible of any insurance policy carried by Seller. Payment of any deductible of insurance carried by Seller shall be the sole responsibility of the Seller.

(g)           Evidence of Citizenship or Immigrant Status:  (i) Buyer may be required to obtain information concerning citizenship or immigrant status of Seller’s personnel or Seller’s subcontractor personnel entering the premises of Buyer. Seller agrees to furnish this information before commencement of Work and at any time thereafter before substituting or adding new personnel to work on Buyer’s premises. Information submitted by Seller shall be certified by an authorized representative of Seller as being true and correct. (ii) With respect to Seller personnel or Seller’s subcontractor personnel entering the premises of Buyer to perform work under this contract, Seller specifically agrees that it is, and will remain, in compliance with all applicable immigration and guest worker laws and regulations, and will permit Buyer, upon reasonable notice, to inspect and audit Seller's records documenting such compliance with respect to said personnel. Seller subcontracts for work under this contract shall suitably modify the Parties in this paragraph and include the substance of this paragraph in subcontracts such that the subcontractor has the same obligation as Seller.

(h)           Buyer shall provide Seller’s identified personnel with all required identification badges for unescorted or escorted access to Buyer’s premises, as Buyer requires, upon certification by Seller of Sellers’ personnel having completed drug testing and criminal background checks, as required by Buyer.

20.   ANTI-PROSYLITING: Neither the Seller, nor the Buyer, shall actively solicit the employees of the other party regarding employment during the effective period of this contract and for a period of one (1) year following the termination of this Contract.  Such a prohibition shall not apply to employees who apply for employment based upon general announcements or advertisements of employment opportunities.  This Article 20 shall not be effective in those jurisdictions where such clauses are not permitted.

21.   WARRANTY:

(a)            Design, Manufacture and Fitness for Purpose Warranties: Seller warrants that all Work furnished pursuant to this Contract shall: (i) strictly conform to the applicable specifications, drawings, samples, descriptions and other requirements of the Purchase Order;, and (ii) be free from defects in design, material and workmanship.  Seller warrants that the Work delivered pursuant to this Contract is not unnecessarily dangerous, and does not exhibit excessive leakage (fluids, radiation, etc.), instability of any form, insufficient safety interlocks, excessive flammability or inadequate electrical grounding and bonding, where any of these are reasonably required in conformance with industry and Government safety standards and practices, and where the Work is used in conformance to the Seller’s instructions.  Seller shall promptly correct any such deficiencies in the Work prior to Delivery, and at Seller’s sole and complete expense, including all labor, materials and freight charges.  Seller also warrants that the Work to be delivered hereunder shall consist of new materials (as defined in FAR 52.211-5), unless a specific exemption to this requirement appears in the Purchase Order.  Seller warrants that it shall provide Buyer a minimum of a twenty-four (24) month notice of any intent to discontinue the manufacture of any Work purchased hereunder, and provide the Buyer the opportunity to purchase spare parts and/or will identify sources of spare parts, in advance of the date Seller plans to discontinue manufacturing.

(b)            Continuing Warranties: The Continuing Warranty Period shall commence upon the Delivery Date (as defined in Article 2(d)) and extend for a period of twelve (12) months.  If any non-conformity of the Work shall appear within the Continuing Warranty Period, Seller shall, at Buyers option, promptly repair, replace or re-perform the Work at Seller’s complete and sole expense providing all parts, materials and labor.  Warranty work by Seller shall occur promptly within a commercially reasonable time period; and in a manner which minimizes the impact on the Buyer’s on-going business operations. Buyer shall pay freight to Seller’s facility and return for items to be repaired under the Continuing Warranty at Seller’s facility.  Following Delivery to Buyer of the repaired, replaced or re-performed work, the warranty on all repaired, replaced or re-performed Work shall be for the same period as the initial Work, but shall commence on the Delivery Date of the repaired, replaced or re-performed work   Without limitation of any kind, in the case of latent defects, the Buyer’s rights to corrective action by Seller shall commence upon Buyer’s discovery of the latent defect and notification of Seller thereof.  All warranties shall be for the benefit of Buyer and its Customers.

(c)            Seller shall not be liable for lost profits, punitive, incidental or consequential damages due to warranty claims.

(d)           THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES BY SELLER INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITENESS FOR A PARTICULAR PURPOSE.  NO WARRANTIES BY SELLER WILL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE, ANY ‘GAP FILLER” PROVISIONS OF THE UNIFORM COMMERCIAL CODE OR ANY OTHER THEORY OF LAW.

(e)            Any materials provided by Original Equipment Manufacturers (OEMs) are not subject to the above warranties, but are subject to the OEM warranties, which shall pass to the Buyer.